2016 (5) TMI 55 - AT - Income Tax

Reopening of assessment - addition u/s 68 and 69C - Held that - Assessing Officer at the original assessment, applied his mind to the evidences and material on record including letter of the ADIT (Investigation), New Delhi and the investigation revealed that the assessee-company received genuine share capital money from these five companies. There was, thus, no fresh or tangible material within the knowledge of the Assessing Officer at the time of reopening of assessment. It is, therefore, a case of mere change of opinion for reopening of the assessment on the issue of share application money which was already examined and investigated into by the Assessing Officer at the original assessment stage. No specific material was provided by the Investigation Wing to show how the assessee has received accommodation entry from Shri Tarun Goyal. In the statement recorded on the date of survey did not indicate if the assessee received any accommodation entry from Shri Tarun Goyal. It may also be noted here that the Assessing Officer might not have received any fresh information from the Investigation Wing against the assessee because in the reasons for reopening of the assessment, the Assessing Officer has referred to the study of the assessment record of M/s. Kisco Castings Pvt. Ltd. from where it was revealed that Investigation Wing has made same reference against the assessee but there is no direct reference of receipt of any accommodation entry by the assessee-company. Considering the above discussion, it is clear that the Assessing Officer merely acted on suspicion against the assessee. It is a mere case of change of opinion and the Assessing Officer has not examined any material against the assessee for reopening of the assessment. The Assessing Officer was having no specific evidence or material against the assessee for reopening of the assessment. No fresh material has been brought on record to justify reopening of the assessment, therefore, the Assessing Officer has not validly assumed jurisdiction under section 148 of the Income-tax Act for reopening of the assessment in the matter. The decisions relied upon by the learned Departmental representative are not applicable to the facts and circumstances of the case. We, accordingly, set aside the reopening of the assessment and quash the impugned orders under section 147/148 of the Income-tax Act. - Decided in favour of assessee

Summary

Issues Involved:
1. Legality of reassessment under Section 148 of the Income-tax Act, 1961.
2. Addition of Rs. 3,74,00,000 as unexplained cash credit under Section 68 of the Income-tax Act, 1961.
3. Addition of Rs. 8,41,500 under Section 69C as alleged payment of commission on accommodation entries.

Issue-wise Detailed Analysis:

1. Legality of Reassessment under Section 148 of the Income-tax Act, 1961:

The assessee challenged the reopening of the assessment, arguing that it was based on mere suspicion and not on any fresh material or tangible evidence. The original assessment was completed under Section 143(3) on December 30, 2011, where the details regarding share application money were duly investigated. The reassessment was initiated based on information from the Investigation Wing that the assessee received accommodation entries from companies controlled by Shri Tarun Goyal. However, the assessee contended that this information was already within the knowledge of the Department at the time of the original assessment. The Tribunal found that the Assessing Officer had already examined the issue of share application money during the original assessment and accepted the assessee's claim. Therefore, reopening the assessment on mere change of opinion was not justified. The Tribunal quashed the reassessment proceedings, citing that no fresh or tangible material was brought on record to justify the reopening.

2. Addition of Rs. 3,74,00,000 as Unexplained Cash Credit under Section 68 of the Income-tax Act, 1961:

The Assessing Officer made an addition of Rs. 3,74,00,000 under Section 68, considering the share application money received from five companies as bogus. The assessee provided confirmations, bank statements, Income-tax returns, and other documents from these companies, which confirmed the transactions. The Tribunal noted that the assessee had discharged its initial burden to prove the identity, creditworthiness, and genuineness of the transactions. The Tribunal referred to various judicial pronouncements, including the Supreme Court's decision in CIT v. Lovely Exports Pvt. Ltd., which held that if the share application money is received from genuine shareholders, it cannot be regarded as undisclosed income of the assessee. The Tribunal found that the assessee had provided sufficient evidence to prove the genuineness of the share application money and deleted the addition.

3. Addition of Rs. 8,41,500 under Section 69C as Alleged Payment of Commission on Accommodation Entries:

The Assessing Officer made an addition of Rs. 8,41,500 under Section 69C, alleging that it was paid as commission for obtaining accommodation entries. The Tribunal, having quashed the reassessment proceedings and deleted the addition of Rs. 3,74,00,000 under Section 68, found no basis for the addition under Section 69C. The Tribunal noted that the evidences on record showed that the transactions were genuine, and there was no material to support the allegation of commission payment. Consequently, the addition of Rs. 8,41,500 was also deleted.

Conclusion:

The Tribunal quashed the reassessment proceedings under Section 147/148 of the Income-tax Act, 1961, and deleted the additions of Rs. 3,74,00,000 under Section 68 and Rs. 8,41,500 under Section 69C, finding that the assessee had provided sufficient evidence to prove the genuineness of the transactions. The appeal of the assessee was allowed.